This is an application for condonation for late noting of appeal and extension of time within which to note an appeal.
The background relevant to the determination of this matter is as follows:
In July 2009, the applicant purported to note an appeal against a judgment of the Labour Court. On 30 October 2009, the applicant made an application for condonation for late noting of appeal and extension of time within which to note an appeal in this Court. The application was granted by ZIYAMBI JA on 21 December 2009.
The order given reads as follows:
“IT IS ORDERED THAT:
1. The applicant be and is hereby granted leave to note an appeal against the entire judgment of the Honourable B.T. Chivizhe, President of the Labour Court, under Case No; LC/H218/2008 dated 24 February 2009, and extension of time within which to appeal.
2. The applicant shall file his notice and grounds of appeal within 5 days of the date of this order.”
The applicant proceeded to note his appeal.
The appeal was set down for hearing on 16 March 2010. On that day, the respondent raised a point in limine to the effect that there was no proper appeal before the court as the applicant had failed to comply with the Rules of this Court, in particular, Rule 4(1) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975.
This Rule provides, that, the notice of appeal shall be served upon the Labour Court Registrar.
Such service, as required, was not done, and, as a result, the matter was struck off the roll for non-compliance with this particular Rule.
At that stage, there was no proper appeal pending before this Court.
On 18 March 2010, after having regularized the defects in his notice of appeal, the applicant approached this Court, for the second time, with an application for condonation for late noting of appeal and extension of time within which to note an appeal.
The respondent opposed the application, but, filed his notice of opposition out of time.
The applicant's application was then set down for hearing on 20 October 2010 before CHEDA AJA as an unopposed matter.
The matter proceeded on this day and judgment was reserved. It was then delivered on 30 August 2011.
It was on this day that the applicant's application for condonation for late noting of appeal and extension of time within which to note an appeal was dismissed.
CHEDA AJA went further and held that there were no prospects of success on appeal.
In dismissing the application, the learned judge placed reliance on the principles outlined in the case of De Kuszaba-Dabrowskiet Uxor v Steel NO 1966 RLR 60 (A).
Aggrieved by the decision of CHEDA AJA, the applicant, on 1 June 2012, made another application for condonation for late noting of appeal and extension of time within which to note an appeal for the third time.
The application was placed before me.
The application was opposed.
The applicant filed his heads of argument on 22 June 2012. The respondent did not file any heads of argument.
Counsel for the respondent submitted, that, he had briefed an advocate who was supposed to draft heads of argument and file them, but, the advocate had failed to do so.
Counsel for the respondent apologized and stated that he would present oral submissions.
At the commencement of the hearing, counsel for the applicant was asked as to whether or not the application filed ought to be heard by a single judge, sitting in chambers or by three judges in open court.
Following consultations with counsel for the respondent, counsel for the applicant indicated that the matter should be heard in chambers before a single judge. Counsel for the respondent agreed with this approach.
The question now before me is whether there is any law that provides for such an application to be made.
If there does exist such legal authority, then, the next issue is whether or not CHEDA AJA had dealt with the merits of the application.
Counsel for the applicant submitted, that, there was no law upon which this application was based.
Counsel for the applicant stated, that, he required clarity as to whether or not the applicant had prospects of success on appeal since there were two “conflicting” decisions of this court on this aspect. He made reference to the decision by ZIYAMBI JA on 21 December 2009 and the other by CHEDA AJA on 30 August 2011.
Counsel for the applicant submitted, that, CHEDA AJA erred and misdirected himself by dismissing the second application for condonation and extension of time within which to appeal when ZIYAMBI JA had earlier acceded to a similar application.
The applicant in this application is asking me to overturn the findings of CHEDA AJA, that the appeal has no prospects of success.
The applicant is not clear whether the application before me is for review or is an appeal.
Section 26 of the Supreme Court Act provides as follows:
“26 Finality of decisions of Supreme Court
1. There shall be no appeal from any judgment or order of the Supreme Court.
2. The Supreme Court shall not be bound by any of its own judgments, rulings, or opinions or those of any of its predecessor.”
CHEDA AJA had determined that there were no prospects of success on appeal, even if the application was granted.
The applicant, in his affidavit, avers that the latest judgment delivered by CHEDA AJA contradicts an earlier judgment of ZIYAMBI JA on the same issue, that is, whether or not there were any prospects of success on appeal.
Both parties have agreed, that, in dismissing the application, CHEDA AJA was not bound by the decision of ZIYAMBI JA.
There is no written judgment that was handed down by ZIYAMBI JA. An order was granted by ZIYAMBI JA. There are no written reasons for the order.
It is however clear from the judgment delivered by CHEDA AJA, that, the learned judge consciously considered whether the applicant had any prospects of success on appeal. The learned judge dealt with this issue at length and came to the conclusion that the applicant had no prospects of success, even if the application for condonation was granted.
In my view, the judgment delivered by CHEDA AJA does not contradict the order granted by ZIYAMBI JA.
The effect of the judgment of CHEDA AJA was not to nullify an earlier order granted by ZIYAMBI JA because that earlier order was no longer operational.
ZIYAMBI JA had ordered the applicant to file a notice and grounds of appeal within five days of the date of the order. The applicant failed to comply with such an order. As a result of such failure to comply by the applicant, there was no appeal before this Court.
It is trite in our law, that, fatally defective compliance with the Rules regarding the filing of appeals cannot be condoned or amended.
KLOPPER JP in Hattingh v Pienaar 1977 (2) SA 182 (O)…, held that:
“…, a fatally defective compliance with the rules regarding the filing of appeals cannot be condoned or amended. What should actually be applied for is an extension of time within which to comply with the relevant rule.”
This position was also confirmed and applied by this Court in Jensen v Acavalos 1993 (1) ZLR 216 (S)…, where KORSA JA stated that:
“…, a notice of appeal which does not comply with the rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad but incurably bad…, the appeal must be struck off the roll with costs.”
The notice of appeal that was filed by the applicant was not only invalid but was a nullity. That is the reason why the appeal was struck off the roll on 16 March 2010.
Effectively, the order issued by ZIYAMBI JA was no longer operational.
The only way this matter could be brought back to this Court was through a fresh application for condonation for the late noting of appeal and extension of time within which to note an appeal.
This is what the appellant did.
That application was placed before CHEDA AJA and it was dismissed.
It is apparent from an analysis of the facts before me, that, the order by ZIYAMBI JA gave the applicant a chance to have his appeal heard but the applicant wasted it by not complying with the terms of the order. The applicant himself is to blame for what transpired on 16 March 2010 when his appeal was struck off the roll.
There is no merit in this application at all. There is no basis at law upon which I can entertain such an application.
I find that the order granted by ZIYAMBI JA, and the judgment by CHEDA JA, do not contradict each other. This matter has been dealt with on the merits and disposed of by CHEDA AJA who made a ruling on the merits of the matter.
In his findings on p7 of the judgment, CHEDA AJA said this:
“The appellants and their legal practitioners took a calculated risk that the matter would proceed without them.
Worse still, they left without responding to, or refuting the charges against them. They declined the opportunity to put forward their defences to the allegations. I find no fault in the Labour Court holding, that, the appellants waived their rights to be heard by walking out of the disciplinary proceedings.
In view of the above, I am satisfied that there are no prospects of success if leave to appeal is granted.”…,.
This is a clear indication that the learned judge had dealt with the merits of this application.
The effect of the judgment of CHEDA AJA was to bring finality to this matter. I cannot entertain the same application again and make findings on the merits because a ruling has been already made by CHEDA AJA. The parties are enjoined to honour the judgment and abide by its terms.
There is need to bring finality to litigation.
This is a case where the principle of res judicata applies.
The principle of res judicata has been pronounced by this Court in various cases, including the case of O'shea v Chiunda 1999 (1) ZLR 333 (S)…, where SANDURA JA held that:
“res judicata applies where the two actions are between the same parties, or their successors in title, concerning the same subject matter and founded on the same cause of action.”
Counsel for the applicant conceded that this application is the same as the one that was dismissed by CHEDA AJA on 30 August 2011.
In Wolfeden v Jackson 1985 (2) ZLR 313…, GUBBAY JA…, stated as follows;
“The exception rei judicatae is based principally upon the public interest, that, there must be an end to litigation and that the authority rested in judicial decisions be given effect to, even if erroneous: see Le Roux en'n Anderv Le Roux 1967 (1) SA 446 (A) at 461H. It is a form of estoppel and means that where a final and definitive judgment is delivered by a competent court, the parties to that judgment or their privies…, are not permitted its correctness.”
This court is a creature of statute and it operates within the confines of the enabling Act.
The applicant conceded, that, there is no law that provides for such an application. The relief sought is not provided for by law. Accordingly, this application must therefore fail....,.
The application is hereby dismissed with costs.
